HomeMy WebLinkAbout022725 ORD - 10/15/1996AN ORDINANCE
AN ORDINANCE GRANTING TO CAPROCK FIBER NETWORK, LTD.
A NON-EXCLUSIVE ONE-YEAR FRANCHISE TO CONSTRUCT,
MAINTAIN, AND OPERATE IN DESIGNATED PORTIONS OF PUBLIC
RIGHTS-OF-WAY TELECOMMUNICATION FACILITIES FOR THE
PURPOSE OF PROVIDING LIMITED SERVICES WITHIN THE CITY AND
FUTURE ADDITIONS THERETO.
WHEREAS, the City has the authority to manage control and receive compensation for the
use of all public rights of ways within the City under state law and under its City charter; and
WHEREAS, the City has the authority to establish requirements and conditions to safeguard
the rights of its citizens and to maintain the integrity and conditions of public rights of ways; and
WHEREAS, CapRock Fiber Network, Ltd. (sometimes referred to as "CapRock") has
requested a franchise from the City to use the City's rights of ways to provide telecommunication
services; and
WHEREAS, as a condition of receiving this franchise, CapRock has agreed to the above
mentioned "Whereas" clauses and to abide by the conditions and requirements as set forth herein and
by the City's current and future policies, ordinances and regulations regarding the use of its rights
of ways, and by the provisions regarding the use of its public rights of ways, such agreement being
evidenced by their formal acceptance of the franchise.
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF CORPUS CHRISTI:
SECTION 1. GRANT OF NON-EXCLUSIVE FRANCHISE. A non-exclusive franchise
is hereby granted to CAPROCK FIBER NETWORK, LTD., (hereinafter "Grantee"), pursuant to
Article IX of the Charter of the City of Corpus Christi, to construct, maintain and operate in, over,
under and across those portions of public rights-of-way in the City of Corpus Christi, Texas
(hereinafter, the "City"), telecommunication facilities within the City and future additions thereto,
for the purpose of providing telecommunication services. The duration of such franchise shall be a
period of 1 year, to commence upon the passage and approval of this Ordinance by the City Council;
provided that, nothing in this Ordinance shall be construed as granting to Grantee an exclusive
franchise for the purposes herein set forth. When used herein, the term "facilities" shall mean all or
any part of a network of fiberoptic telecommunication cables and all related property including
conduit, carrier pipe, cable fibers, repeaters, power sources, and other attachments and appurtenances
necessary for fiberoptic communication, and located within the City's right-of-way.
SECTION 2. GENERAL TERMS. Grantee, for the duration of this franchise and the
purposes hereinabove expressed, shall have the privilege to construct, operate and maintain
underground conduits, subways and vaults, and place wires and cables therein and to make any and
all necessary excavations therefor, in, over, under and across all or any of the portions of streets,
alleys, avenues and public ways of the City only: West Broadway, Waco, and North Chaparral
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Streets, as depicted in Exhibit C, incorporated herein and to utilize, with permission of the affected
utility companies, their facilities within public rights-of-way including poles, for the purpose of
providing telecommunication services within the City, to be exercised in such manner only,
however, as to offer the least interference with the public use of said streets, alleys, avenues and
public ways, and Grantee shall be subject to and shall comply with all laws, charter provisions and
ordinances of the City and shall be further subject to and shall comply with all rules, regulations and
other restrictions of the City. For purposes of Chapter 49 of the Code of Ordinances concerning
Streets and Sidewalks, Grantee shall be deemed to be a public utility company with all the privileges
and obligations therein stated. The granting of this franchise shall not prohibit the City from granting
other non-exclusive franchises or otherwise allowing or making other uses of the City's rights-of-
way.
SECTION 3. AUTHORIZATION. Grantee shall not provide services directly regulated
by the Texas Public Utility Commission (the "PUC") under the Public Utility Regulatory Act unless
authorized by the PUC. Grantee shall not provide, nor allow another to use its facilities to provide,
in an area subject to the jurisdiction of the City cable services or operate a cable system as defined
in the Cable Communications Policy Act of 1984 (47 U.S.C.A. §521, et seq. as amended) or as
recognized by the Federal Communications Commission (the "FCC") without first obtaining a
separate cable franchise from the City.
SECTION 4. INDEMNIFICATION. Grantee hereby agrees to indemnify, defend and save
harmless the City, its mayor and council members, appointed boards and commissions, officials,
officers, employees, attorneys and insurance carriers, individually and collectively, from all losses,
claims, suits, demands, expenses, subrogations, attorney's fees, or actions of any kind and nature
resulting from personal injury to any person, including employees of Grantee, or of any contractor
or subcontractor employed by Grantee, (including bodily injury and death) or damages to any
property, arising or alleged to have arisen out of the acts of Grantee, its contractors, subcontractors,
officers, agents and employees while exercising any of the rights or privileges granted by this
franchise. The amount and type of insurance coverage requirements set forth herein will in no way
be construed as limiting the scope of indemnity in this paragraph. Grantee further agrees and shall
have the right to appear, defend, indemnify and hold harmless the City in any action, claim or suit
challenging the grant of or any of the rights conferred upon the Grantee by this franchise.
SECTION 5. FEES. (a) Acceptance Fee and Transfer Fee: As the City has incurred certain
administrative cost in processing this franchise application, Grantee agrees to pay a processing and
acceptance fee to the City in the $5000.00 due and payable upon acceptance of the Ordinance by
Grantee, a processing and acceptance fee of $10,000.00 shall also be due and payable upon any
transfer, sale or assignment of this franchise in accordance with Section 9.
(b) Annual Administrative Fee: As the City will incur ongoing cost in the administering of
this franchise, Grantee further agrees to pay an annual administrative fee to the City of $3000.00 due
and payable on each anniversary date from the effective date of this ordinance during the term of this
franchise.
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(c) Annual Franchise Fee: For the reasons that the public streets, alleys, and rights of ways
to be used by Grantee in the operation of its telecommunications system and in the placing of its
facilities within the boundary of the City, are valuable public properties, acquired and maintained
by the City at great expenses to its taxpayers, and because the grant to Grantee of the non-exclusive
right to use said public streets, alleys and public rights of ways, is a valuable property right, Grantee
agrees to pay the City as compensation during each year of this Ordinance, an annual franchise fee
as described herein.
(d) Amount of Franchise Fee: As compensation for the rights and privileges herein
conferred, Grantee shall pay to the City each calendar quarter during the term of this franchise a
quarterly payment equal to five percent (5%) of the total quarterly Gross Receipts (as defined below)
received by the Grantee for services provided to customers within the corporate limits of the City,
and within the City's industrial districts as defined in Texas Local Government Code § 42.044, from
the operation of Grantee's telecommunication network within the City, but not less than $125.00 for
the first four quarters following acceptance of this ordinance, and $500.00 for every quarter
thereafter. This quarterly payment required by this ordinance shall be due and payable not later than
the last day of the month following the quarter for which payment is due. If the last day of the
month following the quarter for which payment is due falls on a weekend or holiday, then the
payment is due on the next business day following the last day of the month. The compensation set
forth in this Section shall be exclusive of, and in addition to, any Construction Permit Fees for new
construction as described herein in Section 8 and all special assessments and taxes of whatever
nature, including, but not limited to, ad valorem taxes. In the event any quarterly payment is not
timely made. Grantee shall pay a late payment penalty of the greater of: (i) $100 or (ii) simple
interest at ten percent (10%) annual percentage rate of the total amount past due. As used in this
Section, Gross Receipts shall mean all revenues derived directly or indirectly by Grantee from the
operation of Grantee's telecommunications network installed pursuant to this franchise and all
revenues derived by Grantee, directly or indirectly, from the telecommunications services provided
in whole or in part by means of Grantee's telecommunications network or by way of Grantee's
facilities. "Gross receipts" shall also include a proportionate share of revenues derived from
customers outside the City's limits served by means of the telecommunications network or facilities
of Grantee. Such proportionate share shall be determined dividing the total mileage of the
telecommunications network or facilities of grantee in the city by the sum of the total
telecommunications network or facilities mileage of Grantee in the City and the mileage of
additional facilities of Grantee outside the City necessary to serve its customers outside the City.
"Gross receipts" shall not include the revenue uncollected from customers. Without limiting the
foregoing, "Gross Receipts" by way of example, shall include, but not be limited to the following:
1. all telecommunications service revenues charged on a flat rate basis,
2. all telecommunications services charged on a usage sensitive or mileage basis,
3. all revenues from installation service charges,
4. all revenues from connection or disconnection fees,
5. all revenues from penalties or charges to customers for checks returned from banks,
net of bank costs paid,
6. all revenues from equipment sold or rented to customer upon customer premises,
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7. all revenues from local and a proportion of long distance full rate service,
8. all revenues from authorized rental of conduit space,
9. all revenues from charges for access to local and a proportion of long distance
networks,
10. all revenues from any leases or sub -leases of any portion of Grantee's network,
including plant, facilities, or capacity leased to others for cable television services
or any other purpose,
11. all other revenues collected by Grantee from business pursued within the City,
12. all recoveries of bad debts previously written off and revenues from the sale or
assignment of bad debts, and
13. franchise fees.
Quarterly payments shall be accompanied by a statement, certified by an officer of the
Grantee, that sets forth the gross receipts for the quarter and the fee paid.
Payment of money under this Section shall not in any way limit or inhibit any of the
privileges or rights of the City whether under this franchise or otherwise. Grantee shall file annually
with the City Comptroller, no later than 4 months after the end of the Grantee's fiscal year, a
statement of revenues (for that year) attributable to the operations of the Grantee's network within
the City pursuant to this franchise ordinance. This statement shall present in a form prescribed or
approved by the City for use by all holders of franchises similar to this franchise, a detailed
breakdown of gross revenues and uncollectible accounts for the fiscal year in substantially the form
as attached in Exhibit A. This statement shall be audited at no cost to the City by a certified public
accountant chosen by Grantee whose report shall accompany the statement. The City may cause an
additional audit to be performed by an auditor selected by the City not more frequently than every
third year and Grantee shall reimburse the city for reasonable costs of such additional audit as
determined by the City. Any transactions which have the effect of circumventing payment of
required franchise fees and/or evasion of payment of franchise fees by non -collection or
non -reporting of gross receipts, bartering, or any other means which evade the actual collection of
revenues for business pursued by Grantee are prohibited.
SECTION 6. INSURANCE. (a) Grantee shall obtain and maintain in full force and effect
throughout the term of this franchise ordinance, and any extension or renewal thereof, insurance with
an insurance company licensed to do business in the State of Texas, and acceptable to the City. The
insurance shall be issued in the standard form approved by the State Board of Insurance. Grantee
shall provide City with proof of such insurance so required at the time of filing the acceptance of
franchise, as required herein. The City reserves the right to review these insurance requirements
during the effective period of the franchise ordinance, and any extension or renewal thereof, and
subject to the proviso next following, to adjust insurance coverages and their limits when deemed
necessary and prudent by the City in the exercise of reasonable judgment based upon changes in
statutory law, court decisions or the claims history of the industry or of Grantee; provided any such
adjustment may be made by the City only if such adjustment is made effective to all holders of
franchises similar to this franchise.
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(b) Subject to Grantee's right to maintain reasonable deductibles and self-insured
retention, the insurance policy required by this section shall provide that the insurer will defend
against all claims and lawsuits which arise and pay any final judgment of a court of competent
jurisdiction against the City, or Grantee or the agents, servants, officers or employees of either for
damages or injuries resulting from the acts of Grantee, or Grantee's agents, servants, or employees
pursuant to this franchise. The maximum amount recoverable under such policy shall be not less
than $250,000 for each person and $500,000 for each single occurrence for bodily injury or death
and $100,000 for each single occurrence for injury to or destruction of property.
(c) The City shall be entitled, upon request and without expense, to receive copies of the
policies and all endorsements thereto. The City may make any reasonable requests for deletion,
revision or modification of particular policy terms, conditions, limitations or exclusions, which are
necessary for the policy to provide the coverage required in this Section 6, except where policy
provisions are established by law or regulation binding upon either city or Grantee or upon the
underwriter for any of such policies. Upon request for deletion, revision or modification by the City,
Grantee shall exercise reasonable efforts to accomplish the changes in policy coverages, and shall
pay the cost thereof.
(d) Grantee agrees that with respect to the above required insurance, all insurance
contracts will contain the following required provisions:
(i) The City and its officers, employees, board members and elected
representatives shall be named as an additional insured (as the interests of each may appear)
as to all applicable coverage;
(ii) Contracts shall provide for thirty days notice to the City prior to cancellation,
revocation, non -renewal, or material change;
(iii) Notice required by this section shall be delivered to the City Secretary by
certified mail; and
(iv) All provisions of the franchise ordinance, as amended, concerning liability,
duty, and standard of care, including the indemnity, of this franchise ordinance, shall be
underwritten by contractual coverage sufficient to include such obligations within applicable
policies.
(e) Insurers shall have no right of recovery against the City, it being the intention that
the insurance policies shall protect Grantee and the City and shall be primary coverage for all losses
covered by the policies.
(0 The policy clause "Other Insurance" shall not apply to the City to the extent the City
is an insured on the policy.
(g) Companies issuing the insurance policies shall have no recourse against the City for
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payment of any premiums or assessments which are the sole risk of the Grantee.
SECTION 7. RELOCATION AND CITY USE OF GRANTEE FACILITIES. (a) (1) As
a further consideration for the granting of this franchise, Grantee, in conjunction with the
requirements of any City project shall at its sole expense make such relocations of its facilities within
City rights-of-way or take other steps as may be necessary to facilitate such City project. Such
relocations shall be under the same terms and conditions as the initial installation allowed pursuant
to this franchise.
(2) The City reserves the right to lay, and permit to be laid, sewer, gas, water, and
other pipe lines or cables and conduits, including telecommunications and cable television
lines, and to do and permit to be done any underground and overhead work that may be
deemed necessary or proper by the City, in, across, along, over, or under any right-of-way
occupied by the Grantee, and to change any curb or sidewalk or the grade of any street. In
performing or permitting such work to be done, the City shall not be liable to the Grantee for
any damages related to such work, nor shall the City be liable to the Grantee for any damages
not proximately caused by the City's sole negligence, provided, however, nothing herein
shall relieve any other person or corporation from liability for damage to facilities of the
Grantee.
(3) In the event that the City authorizes abutting landowners to occupy space
under the surface of any street, alley, highway, or public place, such grant to an abutting
landowner shall be subject to the rights of the Grantee described herein. In the event that the
City plans to close or abandon any right-of-way which contains any existing Grantee
facilities, City shall, (1) give notice of the date the city council is to consider the closure or
abandonment, (2) if requested by Grantee, reserve a continuing right for the Grantee's
facilities, and (3) make any subsequent conveyance of land involved in the closure or
abandonment subject to the specific right of continued occupancy by Grantee or require the
beneficiaries of the closure or abandonment to pay the costs associated with relocation of
Grantees facilities to alternate acceptable locations.
(4) Whenever it shall be necessary to require Grantee to alter, change, adapt, or
conform its facilities within the right-of-way, such alterations or changes shall be made
promptly, with consideration given to the magnitude of such alterations or changes, without
claim for reimbursement or damages against the City. If any such requirements impose a
financial hardship upon the Grantee, the Grantee shall have the right to present alternative
proposals to the City, and the City shall give due consideration to any such alternative
proposals. It is understood and further provided, however, that the City shall not require
Grantee to remove its facilities entirely from such right-of-way. If the City requires the
Grantee to adapt or conform its facilities to enable any other entity or person, except the City,
to use, or to use with greater convenience, or rights-of-way, Grantee shall not be required to
make any such changes until such other entity or person shall reimburse or make
arrangements satisfactory to Grantee to reimburse the Grantee for any loss and expense
caused by or arising out of such change; provided, however, that the City shall never be
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liable for such reimbursement.
(5) For public improvement projects where, after notification that facility
relocation is required, the Grantee has not, prior to the beginning of construction by the City,
relocated its affected facilities within the rights-of-way after being afforded a reasonable
length of time to do so as determined by the City's Director of Engineering (sometimes also
referred to herein as the "City Engineer"), or other designee of the City Manager, giving
consideration to the scope of the facility relocation, and when such delays are not caused by
actions of the City, the following procedure will be followed. The City shall provide the
Grantee with reasonable notice of failure to act and request relocation. If the Grantee
continues to delay, the City's Director of Engineering or other designee and the Grantee's
Division Manager over outside plant engineering and construction will jointly review the
relocation request in an expeditious manner to establish a mutually acceptable completion
date for the relocation. If the grantee continues to delay or does not meet the revised
completion date, the City's Director of Engineering or other designee shall provide not less
than five (5) days written notice to the Grantee's Division Manager over outside plant
engineering and construction advising the Grantee of the City's intent to effect the relocation
of the affected facilities. If after expiration of the written notice required by the preceding
sentence, the Grantee continues to delay, the City shall have the right to effect relocation of
the affected facilities and the Grantee shall reimburse the City for all costs of such relocation.
The City shall not be liable to the Grantee for any damage to such facilities unless
proximately caused by the City's gross negligence, and shall not be liable in any event for
any consequential damages relating to service interruptions. Such relocation by the City will
be performed only when the Director of Engineering determines that it is necessary to
prevent disruption of a City project. Such relocation will be accomplished by means of
temporary construction and in a manner which will not unreasonably disrupt
telecommunications services. The City shall make every effort to coordinate with the
Grantee prior to such necessary relocations and will not attempt to relocate such facilities
until the City has exhausted the foregoing procedures. The Grantee shall ultimately be
responsible for the final permanent relocation of the Grantee's facilities.
(b) The Grantee, at its sole cost and expense, shall provide to the City for noncommercial
intergovernmental purposes four pair (eight strands), of single mode fiber (dark) in each cable
installed by the Grantee throughout the portion of the backbone network used for transmission
purposes. The Grantee shall promptly provide to the City OTDR reports upon request by the City.
In addition, the Grantee shall provide at the Grantee's cost to be reimbursed by the City, 1) lateral
lines connecting the City's locations to the backbone network as required by the Director of
Engineering, and 2) any necessary facilities to accomplish the interconnection of City
telecommunications services.
(c) In addition to lateral lines provided pursuant to subsection (b), the Grantee shall
construct laterals, up to 100 feet at Grantee's expense, to connect five City buildings to the backbone
network. The Grantee is required to provide such lateral connections within a reasonable time of
request. Such city buildings must be identified in writing . The City shall reimburse Grantee for all
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costs incurred by Grantee attributable to that portion of such lateral lines constructed beyond 100
feet of Grantee's network. In addition, Grantee shall splice the City's dark fibers to the backbone
network, and terminate same into a fiber patch panel provided by Grantee at each of the five City
sites.
The City will provide at its expense the necessary multiplex and terminal equipment at City
sites to allow the City to access the Grantee's network. The City shall have the right to connect
directly to the Grantee's network in any manner technologically feasible so long as the City's use
of its fibers do not interfere with Grantees use of the remainder of the facilities. The City shall also
have the right to interface the City's microwave system for transport across and delivery on the
Grantee's network.
The equipment installed at the City's facilities shall be integrated into the Grantee's network
monitoring and control system, and the Grantee shall report all failures of the network or equipment
affecting the City telecommunication traffic to the designated City representative. In the event of
an equipment or network failure (other than failure caused by an act of God) that affects the City's
telecommunication traffic or ability to carry traffic, the Grantee shall (a) report the outage to the City
within one hour, and (b) use its best efforts to restore service to the City at the same time it restores
service to its other customers.
In the event that Grantee is not able to notify the City or restore the services within these time
lines, this will not be a basis for forfeiture or termination of the Franchise under Sections 13 or 14.
Grantee shall not be responsible for any direct or indirect or consequential costs or damages of the
City relating to the failure of the free services, equipment and fiber provided to the City by Grantee
under this Agreement, and in consideration for these free services, fiber and equipment the City does
hereby expressly release Grantee from all such costs and damages.
(d) Where City Council finds that use of the facilities by another governmental agency
serves the public purpose, the City may make facilities reserved for the City available to such agency
on terms and conditions not inconsistent herewith.
(e) The City reserves the right to obtain bids from vendors, other than Grantee and other
franchisees.
SECTION 8. USE OF CITY PROPERTY.
(a) All facilities shall be underground unless placed on existing poles of another utility.
Grantee shall lay, construct, operate, lease, maintain, repair and replace the telecommunications
facilities in a manner that will not unreasonably interfere with use of the streets, alleys, or any public
property or other public ways ("Public Way"). Should the owner of existing poles place their
facilities underground, Grantee shall do likewise.
(b) Grantee shall at its own expense repair, to the satisfaction of the City, all City owned
water lines, storm and sanitary sewer lines, service lines, water meters, streets, sidewalks, curbs,
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gutters or other property of the City damaged by any of the operations of the Grantee, its contractors,
subcontractors, employees, agents or assigns engaged in pursuant to this franchise.
(c) Before Grantee constructs, extends or replaces the telecommunications facilities in any
Public Way, it shall apply for and acquire a construction permit and pay all fees associated with
same in accordance with this Section 8, and file with City Engineer a written work description,
including scale drawings, showing the facility's location (or proposed location) and estimated depth
of the facilities (existing and proposed). Such drawings and specifications shall be prepared,
executed and sealed by a registered professional engineer. Such drawings and specifications will
be reviewed by City Engineer and any comments will be provided to Grantee within thirty (30) days.
Grantee agrees to make any changes to the drawings and specifications requested by City Engineer.
Before Grantee performs any maintenance repairs, replacement or removal of facilities, Grantee shall
give at least thirty (30) days notice to City Engineer as to the time and location of the proposed
construction, repairs or replacement. Daily work schedules shall be provided to City Engineer by
8:30 a m each day any construction, repair or replacement of facility by Grantee is performed.
When an emergency occurs that involves the facilities, repairs shall be performed by Grantee and
notice shall be given to City Engineer within twenty-four (24) hours following initiation of such
emergency repairs. Approval of all non -emergency construction, repair and replacement of the
facilities must be obtained prior to such construction, repair and replacement, unless otherwise
provided. Such approval shall not be unreasonably withheld or delayed. Approval by City Engineer
shall constitute full authority for the issuance of permits.
(d) All work in the Public Way and other surfaces will be performed in accordance with the
City specifications and regulations for Street and Storm Drainage & Street Paving Construction and
be subject to regulation, control and direction of the City Engineer. All work done in connection
with the laying, construction, operation, maintenance, repairing and replacement of the facilities, in
whole or in part, shall be in compliance with all applicable laws, ordinances, rules and regulations
of City, County, the State of Texas, and the United States.
(e) Grantee shall belong to the same underground utility locating system as the City. Prior
to beginning any excavation trenching or digging using powered equipment or hand tools which may
damage existing underground facilities, Grantee shall contact all appropriate underground utility
coordinating systems and determine if there are any facilities in the vicinity of the proposed
activities. If physical contact is made with another facility during any excavation, trenching or
digging, the owner of that facility must be notified for inspection and repairs prior to Grantee
continuing work. Grantee shall promptly respond to requests for line locations generated from other
franchised or City owned utilities.
(f) When Grantee performs or causes to be performed any work on any Public Way, or so
closely adjacent thereto as to create hazards for the public or themselves, Grantee, its employees,
agents or its contractor, shall provide construction and maintenance signs and sufficient barricades
and flagmen at work sites to protect the public, equipment and workmen. The application of such
traffic control devices shall be consistent with the standards and provisions of the latest addition to
the Texas Manual on Uniform Traffic Control Devices. Appropriate warning lights shall be used at
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all construction and maintenance zones where one or more traffic lanes are being obstructed during
nighttime conditions.
(g) Grantee shall repair, clean up and restore the Public Way and other surfaces disturbed
during the construction and repair of its facilities and shall warrant the repairs and restoration of such
City Engineer may require a Surface Correction Bond, and Grantee agrees to provide such bond with
terms and conditions in the amount required by City Engineer. Public Way and other surfaces for
a period of two years from the date of completion of same. Such repairs, clean up and restoration
shall return the Public Way and other disturbed surfaces to substantially the same condition they
were in before Grantee's work began. The determination that the Public Way and other surfaces have
been returned to substantially the same condition shall be made by City Engineer.
(h) Grantee shall refill, and repave any cut in any pavement. All excavations made by
Grantee in any portion of a Public Way for the purpose of constructing, operating, maintaining,
repairing, replacement or removing a facility, or any part thereof, shall be in accordance with City
standards. If, after refilling such excavation, the earth within the excavated area settles so as to leave
a depression, Grantee may be required to make further necessary fills from time to time as ordered
by City Engineer. Grantee shall repair all portions of any Public Way across, along, over, above or
under which a facility is laid and place the same in as good a state of repair and condition as they
were in at the time the construction repair, or removal was commenced. Such repairs shall be to the
satisfaction of City Engineer.
(i) Repair to the Public Way or other City property necessitated by any activity of Grantee
shall be made by Grantee at no cost to City and in such manner as is found reasonably necessary by
City Engineer.
0) Any excavation in any portion of a Public Way shall be replaced with materials of the
same kind as those removed unless City Engineer approves of some other type or fill or material.
Grantee shall notify City Engineer before commencing at any time excavation in any portion of any
Public Way, and shall not wholly close any Public Way, but shall at all times maintain a route of
travel along and within any roadway that is within a Public Way, except that in cases of emergency,
City Engineer may authorize a temporary closing of any Public Way or sidewalk in order to take care
of any break, leakage or other public safety risk if, in the opinion of City Engineer, such closing is
necessary to protect the safety of the public.
(k) If Grantee fails to commence or thereafter to diligently prosecute any repair, refilling or
other work required under this franchise the City may cause the work to be done at the expense of
Grantee and may recover all such expense from Grantee together with all costs and reasonable
attorney fees.
(1) City shall have the power at any time to order and require Grantee to remove or abate any
facility that is dangerous to life or property, and in the event Grantee fails or refuses to comply after
reasonable notice, City shall have the power to remove or abate such facility at the expense of
Grantee, all without compensation or liability for damages to Grantee.
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(m) Grantee shall coordinate all such construction, repair or replacement with City Engineer.
(n) Upon completion of the construction, extension or replacement of the telecommunications
system for which a construction permit has been acquired, Grantee shall provide the City as -built
drawings within 60 days. Accuracy of as -built drawings shall meet a survey level of accuracy of 1
foot to 50,000 feet. The drawings shall also be supplied in DXF computer file format with the
location tied to one nearby GPS (Global Positioning System) City Monument. If the total length of
the construction extension or replacement exceeds 1,000 feet in length within the City, it shall be
tied to at least two GPS City Monuments.
(o) City Engineer shall have the power to make such other reasonable rules and regulations
for the placement and manner of such facilities as he may deem appropriate for the protection of the
public and the Public Ways and to avoid unreasonable interference with other uses or contemplated
uses of the Public Ways. City Engineer may perform regulatory inspections of any facility from time
to time as he may deem appropriate for the safety of the public. City Engineer shall give five days
prior written notice to franchise as to the time and date of any such inspections. Grantee shall have
the right to have a representative present during such inspection.
(p) When submitting an application for a construction permit as provided in this Section 8,
Grantee agrees to pay the permit fees provided herein. Such permit fees are in addition to the
franchise fees stipulated in Section 8 and are non-refundable. Each application for a construction
permit shall be accompanied by a non-refundable drawing and specification review fee of a
minimum of $200.00 plus $0.20 per linear foot for lengths in excess of 1,000 linear feet
("Construction Permit Fee"). This Construction Permit Fee is only required for new construction and
encroachments and for renewals, extensions or amendment of existing permits, and is not required
for review of plans associated with routine maintenance or repair of existing facilities when such
repairs or maintenance do not involve new construction. The franchise fee shall be paid in lieu of
any permit or regulatory fees that would otherwise be required to be paid to City, except the
Construction Permit Fee.
(q) No construction permit shall be granted to Grantee unless and until all fees due and
payable pursuant to this franchise have been paid in full, including any fees due and payable for such
construction permit.
(r) Grantee agrees to commence construction of the initial backbone of its fiberoptic system
within 12 months from the date of this franchise ordinance and complete such initial phase within
two years from the date of this franchise ordinance.
SECTION 9. NON -ASSIGNMENT. The rights granted by this franchise shall not be
assigned to any other entity without the express prior written consent of the City which shall not be
unreasonably withheld. A written request for consent to such assignment must be filed with the City,
and any required consent shall be evidenced by an ordinance of the City that fully recites the terms
and conditions, if any, upon which consent is given. The City will not proceed with its options under
6112E0621 302
12
Section 14 hereof, and no forfeiture of this franchise pursuant to Section 13 or Section 14 shall
become effective or be enforced, after Grantee has filed a written request for consent to assignment
until alter City Council has acted on such request. In the event the Grantee sells, assigns, transfers,
conveys or otherwise disposes of any of its rights or its interests under this franchise ordinance, in
violation of this requirement to obtain prior consent, the City may, pursuant to Section 13, revoke
this franchise for default, in which event all rights and interests of the Grantee shall cease and no
purported sale, assignment, transfer or conveyance shall be effective. The foregoing assignment and
transfer provisions shall not apply to an assignment to any parent company of Grantee or to any
subsidiary of Grantee, 50% or more of the outstanding voting securities of which are owned, directly
or indirectly, by Grantee.
SECTION 10. RIGHT-OF-WAY CLOSURE. In the event that the City closes or abandons
any public right-of-way which contains any existing facilities of Grantee, any conveyance of land
containing such closed or abandoned street, alley, highway or public place shall be subject to the
rights of Grantee described in this franchise.
SECTION 11. INFORMATION. The City shall have the right to be kept fully informed
as to matters pertaining in any way to Grantee's exercise of its privileges under this franchise,
including operation, construction, excavation, installation, maintenance and repair of facilities
installed within the City limits. Grantee shall keep complete and accurate maps, construction
drawings and specifications describing the location of facilities installed within the City. Maps,
construction drawings and specifications kept by Grantee in accordance with this franchise shall
provide for separate and specific identification of those facilities of the system that are located in the
public rights-of-way. Any and all maps, construction drawings and specifications required by this
franchise shall be kept and maintained within the City limits. The City shall have the right to inspect
and copy such maps, construction drawings and specifications and Grantee shall fully cooperate in
making available its maps, construction drawings and specifications for inspection.
SECTION 12. NOTICE. Any notice or communication required in the administration of
this franchise shall be sent overnight delivery or certified mail as follows:
City of Corpus Christi
1201 Leopard Street
P. O. Box 9277
Corpus Christi, Texas 78469
Attn: City Manager
CapRock Communications
13455 Noel Rd. Suite 1925
Dallas, Texas 75240
Attn: Jere W. Thompson, Jr.
or to such other persons or addresses as Grantee and the City may by written notice designate from
time to time.
SECTION 13. VIOLATIONS. (a) Upon evidence received by the City that any violation
of this franchise ordinance, any City Charter provisions or any ordinances lawfully regulating
Grantee in the construction and operation of its network is occurring, or has occurred, the City shall
cause an investigation to be made. If the City finds that such a violation exists or has occurred,
6JRB0621302
13
Grantee shall take appropriate steps to cure such violation. Should Grantee fail to comply, alter
reasonable notice and opportunity to cure, then the City may take any action authored by law,
including forfeiture of this franchise and a suit in court to compel compliance. If, in any such
proceeding, default is finally established, Grantee shall be required to pay to the City the reasonable
expenses incurred in the prosecution of such suit and all the City's damages and costs, but Grantee
shall be allowed, either by the court in the judgment of forfeiture or by order of the City Council,
a reasonable time thereafter, as fixed by such judgment or order, to correct the default and pay such
expense, damages and costs as it may be adjudged to pay; and if Grantee does so correct and so pay
within such time, forfeiture shall not become effective nor be enforced.
(b) The City is entitled to obtain such injunctive relief as is necessary to halt any conduct by
Grantee in violation of this franchise agreement or Ordinance, and to such other regulatory and court
ordered relief as the City may prove itself entitled. In the event the City proves itself entitled to
injunctive or such other relief, Grantee shall pay all costs for such regulatory or court proceedings,
including all attorneys' fees, expert witnesses, and other expenses incurred by the City in
investigation and prosecution of the action.
SECTION 14. FORFEITURE AND TERMINATION. (a) In addition to all other rights
and powers retained by the City under this franchise ordinance, the City reserves the right to forfeit
and terminate this franchise ordinance, and all rights and privileges of Grantee hereunder shall cease
in the event of substantial breach, subject to reasonable notice and opportunity to cure as described
in Section 13.A substantial breach by Grantee shall include, but shall not be limited to, the
following:
(i) Grantee's violation of any material provision of the franchise ordinance or any
material rule, order, regulation or determination of the City made pursuant to this franchise
ordinance;
(ii) Grantee's failure to properly compensate the City as required in this franchise
ordinance;
(iii) Grantee's attempt to evade any material provision of the franchise or to
practice any fraud or deceit upon the City or upon Grantee's end-user customers or
interexchange carriers;
(iv) Grantee's sale, transfer, conveyance or assignment of any of the rights and
privileges granted pursuant to this franchise ordinance in violation of Section 9;
(v) Grantee's failure to respond to or comply with the City's requests for reports
and other information as to which Grantee is obligated under the terms of this franchise to
respond to or comply with.
(vi) Grantee's failure to operate its network for six months during any twelve
month period after it has been become operational.
61860621.302
14
(b) The foregoing shall not constitute a substantial breach if the violation occurs without
the fault of Grantee or occurs as a result of circumstances beyond its control. Grantee shall not be
excused by mere economic hardship, nor misfeasance or malfeasance of its directors, officers or
employees.
(c) At any time during the term of this franchise, Grantee may terminate this franchise
upon giving the City 90 days prior written notice of Grantee's election to terminate, accompanied
by payment in cash to the City of an amount equal to the product of the minimum quarterly payment
then pertaining under Section 5 of this franchise multiplied by four (4). Notice and payment having
been so made by Grantee, this franchise shall terminate on the ninetieth day following the delivery
to City of such notice. Upon such termination of this franchise, all rights and obligations of Grantee
and City under this franchise shall terminate and this franchise shall be of no further force or effect,
and Grantee shall be entitled and required to abandon its facilities in place, without further
responsibility or liability therefor.
(d) Upon the expiration of the term of this franchise, or upon its sooner termination by
the joint agreement of grantee and City or by action of City in accordance with its rights set forth
in subparagraph (a) above of this Section 14, City shall have the option of purchasing all facilities
placed within the public right of way by Grantee pursuant hereto, and upon City's exercise of such
option, all such facilities shall be and become the property of the City subject to and upon payment
to Grantee of the then fair market value thereof as determined by a panel of qualified appraisers one
of whom shall be selected by each party and the third by the two so selected. At its sole option, in
lieu of acquiring the facilities, the City may order Grantee, at no cost to the City, to remove its
facilities from the public right-of-way and restore the surface to its original condition or, upon a
finding by city Council that the public interest so requires, allow Grantee to abandon its facilities in
place.
SECTION 15. FAILURE TO ENFORCE. Grantee shall not be excused from complying
with any of the terms and conditions of this franchise by any failure of the City on one or more
occasions to enforce compliance with such terms and conditions.
SECTION 16. POLICE POWERS. Grantee shall comply with all applicable general laws
and ordinances enacted by the City pursuant to its police powers.
SECTION 17. Interpretation of this franchise and the rights and duties created hereunder
shall be pursuant to the Constitution and laws of the State of Texas and the Charter and ordinances
of the City.
SECTION 18. The provisions of this franchise are severable and if any provision, sentence,
clause, section or part thereof shall be held illegal, invalid, or unconstitutional or inapplicable to any
person or circumstance, such illegality, invalidity, unconstitutionality or inapplicability shall not
affect or impair any of the remaining provisions, sentences, clauses, sections or parts of this
franchise or their application to other persons and circumstances.
6.02130621 302
15
SECTION 19. MODIFICATIONS. All terms and conditions of this franchise are contained
herein and any modifications shall be in writing and approved by ordinance except as otherwise
expressly provided herein.
SECTION 20. ACCEPTANCE. Grantee shall, within thirty (30) days alter the effective
date of this franchise ordinance, file in the office of the City Secretary, a written instrument
accepting this franchise ordinance and all terms and conditions thereof, signed and acknowledged
by its proper officers in a form acceptable to the City. Grantee shall not commence construction,
operation or activation of its network until providing City with the insurance and acceptance required
herein.
SECTION 21. PREEMPTION. No provision of this franchise or ordinance shall be deemed
void or unenforceable as a result of state or federal preemption unless and until so determined by a
final, non -appealable order of a state or federal agency or court.
SECTION 22. INTERCONNECTIONS. (a) The Grantee shall notify the Director of
Engineering at least thirty (30) days prior to Grantee's interconnection to or use of the
telecommunications network or right of way of any other telecommunications service provider. Use
or interconnection with an unfranchised telecommunications service provider is prohibited. The
Grantee shall notify the Director of Engineering at least thirty (30) days prior to any
telecommunications service provider interconnecting to or using Grantee's facilities or
telecommunications network. Use of Grantee's facilities or telecommunications network by an
unfranchised telecommunications provider is prohibited.
(b) The Grantee shall not permit any other telecommunications service provider to attach to
Grantee's poles, ducts, conduits, fiber optic cable, coaxial cable, wire, or other transmission media,
or to otherwise use Grantee's right of way until such telecommunications service provider has first
obtained a franchise for such attachment or use from the City. Grantee shall notify such customers
of these requirements by letter substantially similar to Exhibit B attached hereto.
SECTION 23. PUBLICATION. Grantee shall pay all costs of publication of notice of this
Ordinance as required by the City Charter.
SECTION 24. EFFECTIVE DATE. This franchise ordinance shall become null and void
unless Grantee's written acceptance in accord with Section 20 hereof shall be filed with the City
Secretary within thirty days from and after its effective date.
SECTION 25. SUCCESSOR FRANCHISES. In the event that the City approves one or
more additional franchises for Grantee to succeed this franchise, all payments and consideration
provided by Grantee under this franchise shall be credited to such successor franchise for the term
covered by this franchise.
PASSED AND APPROVED THIS I&AY OF QC,1-0h0t) , 1996.
6JRB0621.302
16
CITY OF CORPUS CHRISTI
By:
�49/ ��
ity Secretary Mayor
APPROVED AS TO FORM:
Cit} ttorney
Accepted this•ILday of
ACCEPTANCE
CAPROCK FIBER NETWORK, LTD.
BY: -.. _ri.
ITS. W''Y.L..•✓�
/9
, 1996, by CapRock Fiber Network, Ltd., Grantee.
STATE OF Texas
COUNTY OF Dallas
This instrument was acknowledged before me on this 24th day of October , 1996,
by Jere W. Thompson, Jr. the President , of CapRock Fiber Network, Ltd., a
corporation, on behalf of said corporation, Notary Public, State of Texas •
6JRB0621.302
17
That the foregoing ordinance was read for the first time and passed to its second reading on
this the � day of 5ptQ7/2200 , 19
Mary Rhodes
Dr. Jack Best
Betty Black
Melody Cooper
Tony Heldenfels
, by the following vote:
Betty Jean Longoria
John Longoria
Edward A. Martin
Dr. David McNichols
Thateth?e foregoing ordinance wa read for the second time and passed finally on this the /fIiday
of elthit.) , 19 j , by the following vote:
Mary Rhodes (,(( (J Betty Jean Longoria
Dr. Jack Best S John Longoria
Betty Black
Melody Cooper
Tony Heldenfels n
PASSED AND APPROVED, this the 0D
ay of % , 1996.
ATTEST:
Edward A. Martin
Dr. David McNichols
Armando Chapa, City SecretrMAYOR
THE CIT F CORPUS CHRISTI
APPROVED THIS / 5 DAY OF QchLer , 1996:
JAMES R. BRAY, JR., CITY ATTORNEY
6JRB0621.302
022725
EXHIBIT "A"
CITY OF CORPUS CHRISTI
TELECOMMUNICATIONS FRANCHISE FEE PAYMENT FOI,:d
IN ACCORDANCE WITH ORDINANCE NO.
AMERICAN COMMUNICATION SERVICES OF CORPUS CHRISTI, TEXAS
I. Franchise Fee: The Franchise Fee is due quarterly, but not later than the last
day of me month or next business day if that is a holiday, following the quarter
for which the payment is due.
(a) Total Gross Receipts* (es defined in Section 5 of the Franchise) received this
calendar quarter are $ X 596 = $
(Period includes -, 199_ to _, 199_)
(b) Fees due from receipts derived from Customers outside the City served by
Grantee; :.:,twurt .. ;ar:ait::. siii,:.:t! be ^.omputed as follows:
Total mileage of network/facilities in the City
Total mileage of network/facilities in the City +
mileage of additional facilities outside the City
X $ (revenue outside the City)
X 5% = S
Total Due City: (a) + lb) = S
`Attached is a detailed listing of revenue in accordance with the FCC Chart of
Accounts by revenue accounts and records sent to State Comptroller's Office on
telecommunicadons sales tax evidencing revenue collected in Corpus Christi. In the
event cif any revenue, any customer or any accounts have been excluded or exempted,
those revenues, those accounts and the names of those customers shall be listed in
detail, together with a detailed explanation of the exclusion.
-1-
Period Ending:
Franchisee:
ATTACHED TO FRANCHISE FEE PAYMENT FORM
Revenues in City of Corpus Christi (Report should be filed separately for Franchisee
and each agent and assign).*
Local Service Revenue
(5.000 to 5.069) 47 CFR Part 32
Network Access Services Revenue
(5080 - 6084)
Long Distance Revenue
(5010 - 5169)
Miscellaneous Revenues
(5230 - 5270)
Non Regulated Revenues
(5280)
Uncollectible
TOTAL
Franchise Ree ®I 5% of Gross Revenue
This is a "government record" as that term is defined in TEX. PENAL CODE ANN. f
37.01 women, 1095).
**(Prepare a separate sheet on revenues out of the City.)
0:\WPDOCSl106555%0001 \FORMOO1. CAW\1106951731
EXHIBIT B
Dear
This Company's Franchise with the City of Corpus Christi in Section 22 provides:
(a) The Grantee shall notify the Director of Engineering at least thirty (30) days prior to
Grantee's interconnection to or use of the telecommunications network or right of way of any
other telecommunications service provider. Use or interconnection with an unfranchised
telecommunications service provider is prohibited. The Grantee shall notify the Director of
Engineering at least thirty (30) days prior to any telecommunications service provider
interconnecting to or using Grantee's facilities or telecommunications network. Use of
Grantee's facilities or telecommunications network by an unfranchised telecommunications
provider is prohibited.
(b) The Grantee shall not permit any other telecommunications service provider to attach
to Grantee's poles, ducts, conduits, fiber optic cable, coaxial cable, wire, or other
transmission media, or to otherwise use Grantee's right of way until such
telecommunications service provider has first obtained a franchise for such attachment or use
from the City. Grantee shall notify such customers of these requirements by letter
substantially similar to Exhibit B attached hereto.
Sincerely,
SEP -04-9G 18.04
Lse,'14-Y:tf
••
COMMUNICATIONS..- ID:214 788 4243
PAGE 3/3
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EXHIBIT "C"
TS NOV I3 fl „• 22
PUBLISHER'S AFFIDAVIT
State of Texas, ) CITY OF CORPUS CHRISTI
County of Nueces, ) ss: AD# TH53731
PO#
Before me, the undersigned, a Notary Public, this day personally came _neyprly
.lenaett , who being first duly sworn, according to law, says that she is Business
Office Secretary of the faafbijapti caller Times , a daily newspaper
published at _Sd?I${atsti in said County and State, generally
circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes, Kenedy, Kleberg,
Live Oak, Nueces, Refugio, San Patricio, Victoria, and Webb Counties, and that the
publication of Notice Of Passage Of Ordinances on First Reading
On September 10, 1996, thejj y ouncjl of the
published in the _fd?RPSLiCERISTI CALLER TIMES on the 15th of September,
which the annexed is a true copy, was
1996.
1 Time (s)
$ A6 95
Cagc04C:
[lc (WC z5" .WL—oaa1z5
Business Office Secretary 1).49,,t).Liat Liftaig--
Subscribed and sworn to before me the 12th
of November, 1996.
Notary Public, Nueces `t bunty, Texas
EDNA KOSTER
Notary Public
State of Texas
My Comm. Exp. 11-30-96
r --
State of Texas }
County of Nueces
}
PUBLISHER'S AFFIDAVIT
Li ,10E DT.*
96 OCT 31 psi 3:15
CITY OF CORPUS CHRISTI
ss: Ad #: 930099
PO #:
Before me, the undersigned, a Notary Public, this day personally came Darrell
G. Coleman, who being first duly sworn, according to law, says that he is Vice -
President and Chief Financial Officer of the Corpus Christi Caller -Times, a daily
newspaper published at Corpus Christi in said County and State, generally
circulated in Aransas, Bee, Brooks, Duval, Jim Hogg, Jim Wells, Karnes,
Kenedy, Kleberg, Live Oak, Nueces, Refugio, San Patricio, Victoria and Webb
Counties, and that the publication of, NOTICE OF PASSAGE OF ORDINANCE
NOS. 022725 AND 022726 ON OCTOBER 15, 1996, THE CITY COUNCIL OF
THE CITY OF CORPUS CHRISTI, which the annexed is a true copy, was
published in the Corpus Christi Caller -Times on OCTOBER 20, 1996.
1 Time(s)
$85.10
t.' Po
te =O. oma'
: V: �� ••.y
'0r a`,
/ J; . 4Pwe '
14 0`
Vice -President and Chief Financial
Officer
Subscribed and sworn to before me
on October 24, 1996 .
Notary Public, Nueces County, Texas
CONNIE HARALSON
Print or Type Name of Notary Public
My commission expires on 5/14/97.
p • This is a form only and is not meant .m alter, change, modify or interpret the Franchise. 1
U. Annual Administrative Fee: The Annual Administrative Fee of S
is due on each anniversary date.
STATE OF TEXAS
COUNTY OF SEXAR
1
BEFORE ME, the undersigned authority, on this day personally appeared
who being by me duiy.swom on his oath
stated that he is of , the
Franchisee named and referred to within this Franchise; that he is fully competent and
authorized to give tills affidavit and that the attached Franchise Fee Payment Form is
true end correct and in accordance with the requirement in Section 6 of the Franohise
that he is personally familiar with, and has reviewed recently; that Franchisee has fully
complied with the terms of this Franchise (and knows of no Person that is using or
plan to use any Public Way in a manner that would necessitate such Person to acquire
a franchise from the City.)
NOTARY PUBLIC, STATE OF TEXAS
SWORN AND SUBSCRIBED before me on
NOTARY PUBUC, STATE OF TEXAS
0:1WPDOCS110855510001 \FORM001.CAW\1106951659
-2-
Chris' OctoW[_2°, 1946
NOTICE OF PASSAGE OF
ORDINANCE NGS. 0011775
AND OW%
On MRCS 15, 1506, fM city
Council of the City of Corpus
Christi, Texas, approved on
second reading ordinances
granting a one-year franchise
and a seven-year franchise to
CapRock Fiber Network, Ltd.
The franchises are for the pur-
pose of providing
telecommunications services
to a designated area within the
City. Quarterly payments shall
be made to the City for the use
of public streets and ways
equal
defito ned, wiof
mrossoinimum qucear-
terly
as payments of $125 in the
first year and $500 in subse-
quent years. In addition, there
shall be paid to the Cityan ac-
ceptance fee of $5,000, an
annual administrative fee of
$3,000, construction plan re-
view fees of $200 minimum
and $0.20 per linear foot in ex-
cess of 1.000 feet, and, in the
event of a transfer of the fran-
chise, a transfer fee of
$10,000. The franchises also
provide for indemnification, in-
surance, use of fiber optic
facilities for City purposes, pro-
vision of equipment to the City,
relocation of facilities, protec-
tion of City properly, forfeiture
and termination, and related
matters. all as contained in the
franchises, copies of which are
available for inspection In the
Office of the Qity Elocalsy.
W ArtalYk7SaaOO11a
Cfiy of corpus C1wW0